Philadelphia Zoning, Land Use, and Construction COVID-19 Update - May 13, 2020

This is a current status report on a number of key items, including several changes since our May 6, 2020, update. We will continue to update this list, which may change as new information becomes available. Please call or e-mail the Ballard Spahr Zoning and Land Use Team with any questions regarding this information; in particular, please consult with an attorney regarding all filing deadlines.

State and City Government – General

With limited exceptions, all Philadelphia government buildings are closed to the public, and all non-essential government operations are suspended.

Pursuant to a March 19 order, updated on March 24, Pennsylvania Governor Tom Wolf ordered all non-life sustaining businesses in Pennsylvania to close their physical locations and to remain closed until further notice. These non-life sustaining businesses will be allowed to open on a phased, regional basis beginning May 8. Certain construction related businesses, however, were permitted to reopen beginning May 1, as described in the Governor’s guidance.

Until businesses are allowed to reopen, state agencies and local officials have been instructed to take enforcement actions against all non-life sustaining businesses that are not compliant. These enforcement actions include citations, fines, license suspensions, or criminal charges, along with the forfeiture of any applicable disaster relief, and the termination of State or grant funding, including Redevelopment Assistance Capital Project funding.

In response to the Governor’s order, the Mayor of Philadelphia issued a City order, available here. The City order prohibits the operation of non-essential businesses and defines the terms “essential” and “non-essential.” The order also states that businesses performing Essential Governmental Functions need not obtain an exemption from the State to continue work. On April 29, the Mayor issued a subsequent Executive Order allowing for the resumption of construction throughout Philadelphia for projects with a building permit issued on or before March 20. Construction sites permitted to resume construction must practice social distancing and prioritize the health and safety of their workers, as described in the Mayor’s April 29, 2020 Executive Order. Construction requirements are discussed in greater detail below.

Public Meetings

Although some previously scheduled Philadelphia public hearings remain postponed, including meetings of the Zoning Board of Adjustment and Civic Design Review Committee, several agencies have begun to resume meetings virtually, such as the Art Commission, Planning Commission, and Historical Commission. On April 20 Governor Wolf signed into law Act 15, which allows public meetings and hearings to take place virtually.

Under Act 15, local agencies may conduct public meetings or hearings through an “authorized telecommunications device” that allows, at a minimum, audio communication between individuals. The local agency must notify the public of the proceeding and allow for public participation to the extent practicable, with questions or comments submitted via e-mail or postal mail.

Notably, Act 15 does not require local agencies to conduct virtual meetings, and municipalities retain their discretion to proceed with such meetings. If an applicant submits a request for a meeting and an agency does proceed, the applicant and parties receiving notice of the proceeding are deemed to have waived any challenge to the proceeding under laws governing notice or participation in the meeting. In Philadelphia, it is not clear if Act 15 covers meetings convened by Registered Community Organizations (RCOs), which are required under the Philadelphia Code to hold public meetings as part of the Civic Design Review and Zoning Board of Adjustment processes. The current RCO meeting requirement is holding up many midsize to large projects in Philadelphia, even those that are as-of-right under the Philadelphia Zoning Code.

Tolling of Deadlines

Act 15 also hits the pause button on municipal approvals, tolling—for a 30 day period—the number of days otherwise provided by law to satisfy statutory time limits. Specifically, time limits for reviews, hearings and decisions are suspended as of the date of the COVID-19 emergency declaration, or as of the date an application is received during the emergency. Time limits will resume 30 days after the effective date of Act 15. This suspension of deadlines applies to the expirations of zoning and building permits, as well as the deadlines for municipal agencies to act on applications before they are automatically deemed to have been approved.

Lastly, due to the COVID-19 emergency, the City has also suspended the deadlines for all pending and incoming Right-To-Know requests until normal operations resume. Urgent Right-To-Know inquiries may be directed to Feige Grundman at feige.grundman@phila.gov. The inquiry should include an explanation detailing the urgent need for the information and a request that the relevant department, agency or office continue to review the inquiry during the period of official emergency declaration.

Construction

Pursuant to the Governor’s order, all construction and construction-related businesses in Pennsylvania were required to shut down their physical locations until further notice. Beginning on May 1, construction-related businesses were allowed to reopen in accordance with Governor Wolf’s orders. Upon restarting, businesses must adhere to safety guidelines issued by Pennsylvania’s Secretary of Health and the Centers for Disease Control. Construction in Philadelphia must adhere to the additional guidance issued by the Mayor on April 29 which is briefly summarized below. More information about the restart of construction can be found here, and the Mayor’s Executive Order regarding construction can be found here.

Notably, the Mayor’s Executive Order establishes more stringent controls on the Governor’s statewide guidance. Unlike the Governor’s guidance, the Executive Order only authorizes construction for projects with a building or demolition permit issued on or before March 20, 2020. This authorization includes projects that had a foundation permit issued on or before March 20. If a project fits into this category, all subsequent and tangential permits related to the project can be issued and contractors may thereafter proceed with work. Construction may not, however, commence where a project had neither a foundation permit nor a building permit on or before March 20.

The Executive Order also prohibits certain types of construction. For example, no work is permitted on the interior of occupied residential structures, including work within any occupied dwelling unit or within any shared common area in multi-family buildings, except for certain emergency repairs. Also, no underpinning work, demolition of attached structures, or projects that require the support of an existing party wall is permitted, unless authorized by the L&I Commissioner.

If a construction project is allowed to commence under the Executive Order, work may only occur between the hours of 7:00 AM and 5:00 PM on Mondays through Fridays. Work at other times is prohibited, except in emergency situations. No weekend work is permitted under the Order. However, the City is expected to issue guidance that construction involving healthcare facilities, critical infrastructure, or emergencies will not be subject to the restricted periods of authorized work. More detailed information from L&I is available here and here.

All authorized work must conform to the requirements of the Secretary of the Pennsylvania Department of Health issued on April 15, 2020 (regarding business safety measures for in-person operations) and April 5, 2020 (regarding building safety measures), all applicable guidance of the Centers for Disease Control (including the April 8, 2020 guidance regarding critical infrastructure workers who may have been exposed to COVID-19), and the Governor’s April 23, 2020 guidance (regarding construction industry operations). Also, Philadelphia’s Water Department must be notified of the project at pwd.planreview@phila.gov.

L&I is tracking all stop work orders issued for non-compliant work sites and will pursue action against non-compliant license holders. Failure to comply with the City’s order will result in the issuance of violations and corresponding fines of up to $2,000 per day of violation, the suspension or revocation of the contractor’s license, a referral to Commonwealth authorities, and any other remedies available under law.

Emergency repairs to ensure the safety of a building and habitability of an occupied residence may continue as long as permission is obtained from the Department of Licenses and Inspections. The permission request must include the project address, permit number, the nature of the work, the time required, and the proposed safety provisions. Requests to perform structural work or weatherproofing should include site pictures and engineering reports about the needed construction. Contractors must also obtain a permit within three days of commencing any emergency repairs and replacements. Additional guidance can be found here.

Furthermore, if a project is not authorized under the Mayor’s Executive Order, but a waiver or exemption was issued for the project, then construction may continue. However, construction must be limited to the scope of the waiver/exemption and L&I must be notified by e-mail, along with the Water Department.

Also, the Pennsylvania Department of Labor and Industry is suspending certain regulations related to building construction (where permitted), including but not limited to the expiration of asbestos professional licenses and lead professional certifications.

Licenses and Inspections

L&I employees working on zoning and building permits are generally telecommuting. L&I’s online eCLIPSE permitting and licensing system has been live since mid-March. In general, all electronic applications are being processed under standard review times. Since the majority of applications are being processed in under 10 days, L&I has suspended accelerated review. Currently, L&I is in the final stages of processing all paper applications received before the shutdown. L&I guidance on obtaining permits for pre-eCLIPSE applications is available here. We have successfully obtained permits based on pre-eCLIPSE applications. If you have not received any information regarding your paper application, you should contact L&I at codeissues@phila.gov. All physical copies of issued permits will be held at the Municipal Services Building at 1401 JFK Boulevard until the City shutdown ends, but electronic copies will be made available, along with electronic billing statements. The Municipal Services Building also has a small security staff on site that is receiving mail deliveries to L&I during normal business hours, but visitation by the public is prohibited. In addition, L&I will be increasing application and permit fees by five percent (5%) starting July 1.

L&I maintains a crew of inspectors who prioritize inspections based on the severity of building and safety issues. Crew members will also conduct inspections for compliance with violation orders. The Department requests that all inspections be scheduled through its Interactive Voice Recognition system (IVR). Instructions for IVR are available here. If a contractor needs to meet a critical deadline, he/she should e-mail L&I at codeissues@phila.gov.

Notably, contractors will not be able to schedule inspections if their licenses are not up to date. To schedule an inspection, the contractor must update his/her insurance and tax clearance documents in eCLIPSE. To obtain a “make safe” permit for a dangerous building, an appointment must be scheduled with L&I. Instructions for requesting a “make safe” permit are available here.

L&I has suspended the expiration of previously issued permits during the shutdown. The expiration dates on all construction permits active on or after March 16 have been extended by six months. An additional six month extension may be requested upon the expiration of the extended period. These extensions do not apply to fire code, make safe, or rough-in permits. All zoning permits, including conditional zoning permits, active on or after March 16 have also been extended by six months. This extension is not in addition to any extension issued by the Zoning Board of Adjustment, and all permits granted by variance or special exception are still subject to ZBA regulation. Similar to construction permits, zoning permits can be extended one time for up to one year. Lastly, all permit applications active on or after March 16 have been extended for six months from the date that the permit would be deemed abandoned. Notwithstanding the new extensions, applicants may still receive automated L&I notifications with the old dates. The system-generated expiration dates will, however, be updated by the end of May.L&I has also suspended all deadlines for filing appeals otherwise due after March 13. The time for filing appeals will likely be extended for two weeks in every instance where the original filing deadline would have fallen after March 13. The suspension of the appeal filing deadlines may be extended further at the discretion of the Chair of the License and Inspection Review Board. All appeals currently before the Board will be stayed until further notice unless the Board determines an emergency warrants immediate consideration. An emergency is defined as anything that immediately concerns public health, safety, and welfare.

Anyone requesting an emergency hearing must complete an Emergency Hearing Appeal Form and submit it to michelle.rand@phila.gov, suletazba@gmail.com, kristin.bray@phila.gov, Joanna.klein@phila.gov, and lawcodeenforce@phila.gov. Upon receipt of the form, the Board will either deny the request or schedule an emergency hearing that will take place telephonically.

Permit denials and the ability to appeal are currently available through eCLIPSE if the denial was issued on eCLIPSE after March 15. In addition, the Board of Building Standards and the Plumbing Advisory Board will begin holding hearings virtually starting in May. Participation in the hearings will be optional. 

Zoning Board of Adjustment

All ZBA hearings through the end of May have been cancelled and will be rescheduled once the Board reopens. The Board hopes to reopen in early June, and we will continue to monitor future developments. When the Board does reopen, additional hearings will be scheduled to account for the backlog. In addition, the ZBA is suspending indefinitely all deadlines for filing appeals otherwise due after March 13.

Some Registered Community Organizations are meeting remotely. Other Registered Community Organizations do not appear to be holding meetings. RCOs will not be penalized for postponing community meetings after March 13. The RCOs are encouraged to work with developers to figure out an alternative to public meetings. At this time, the City will not be changing the statutory timelines for when a case must be heard by the ZBA. The Zoning Board will not, however, hear a variance or special exception case when an RCO meeting was not held due to the COVID-19 shutdown period. However, if an RCO meeting is held, it is still uncertain when the subsequent ZBA hearing will take place. Furthermore, at this time, it is not clear when the statutory 45-day RCO consultation period commences. We are hopeful that the City will provide guidance on this issue in the coming days.

Pennsylvania Department of Environmental Protection/U.S. Environmental Protection Agency/U.S. Army Corps of Engineers

By order of Gov. Tom Wolf, Pennsylvania DEP offices throughout the Commonwealth remain closed. However, much of the regional staff is telecommuting and reachable in connection with inquiries on the status of pending environmental approvals/applications. The U.S. EPA remains open via telecommuting options, and the U.S. Army Corps of Engineers also is reachable.

Developers may have some flexibility in their efforts to comply with environmental laws, at least as far as the U.S. Environmental Protection Agency is concerned. Provided that “good faith” efforts are made to comply, and incidents of non-compliance are remedied and documented, EPA’s latest enforcement guidelines offer some understandable relief as Companies struggle to comply with Covid-19 requirements. The policy should apply to enforcement of nearly all federal environmental laws, including the Clean Water Act and its NPDES Storm Water pre- and post-construction permit control requirements. The Pennsylvania Department of Environmental Protection has chosen to handle such matters on a case by case basis, requiring those who have failed to comply as a result of the Covid-19 crisis to submit an application for an enforcement waiver. Here is a link to our Environmental Group’s e-alert on that topic. Here is a link to the previous Ballard Spahr e-alert discussing the EPA policy. 

On April 7, the PADEP announced guidance regarding Chapter 102 Earth Disturbance Permits. Only those permittees that are engaged in life sustaining businesses may continue to do move earth. Non-life sustaining business are directed to cease further site work, stabilize the site, and wait for contrary determinations. Ballard Spahr’s Environmental Group has prepared an alert on that and other guidance announced by PADEP in response to the COVID-19 crisis.

Linear Infrastructure Permitting

A Federal District Court in Montana has invalidated US Army Corps of Engineers Nationwide Permit 12 because the Court found that the Corps did not, while reauthorizing the general permit in 2017, take into proper account the impact of use of the permit on certain endangered species. As a result, work on the Keystone XL Pipeline through areas of Montana has been impacted. The permit has been relied upon by developers of linear infrastructure projects, as it authorizes the filling of jurisdictional wetlands along the route of such developments as electric transmission projects, gas pipeline projects, rail projects, etc. The decision in Northern Plains Resource Council v. United States Army Corps of Engineers can be reviewed here, and has left developers of such projects scrambling to identify other Nationwide Permits that may be utilized to keep projects moving forward and avoid the need to seek individual wetland fill permits for work along the entire route.

Permit Postings

Zoning and building permits should still be posted on properties in the normal course, to the extent possible. Please contact our Zoning and Land Use Team for any assistance.

Streets Department

The Philadelphia Streets Department is focusing its essential personnel on emergency repairs, so inspections of existing projects may be delayed. At least some employees involved in plan approval currently are telecommuting and are actively monitoring projects. The Streets Department is actively working on preparing surveyors to review subdivision and lot line relocation plans remotely, although plans are not currently being reviewed. Plan Review Counter Submissions (Checklist #1) may be submitted online only through the L&I eCLIPSE system. All Plan Review Intake Submissions (Checklist #2/3/4) must be submitted electronically to StreetsROW.PlanReview@phila.gov. Developer Services Meetings deemed necessary by staff may be held remotely.

Water Department

The Water Department’s offices are closed to the public; however, Private Development Services’ staff members are working remotely. Staff members are conducting stormwater plan reviews, utility plan reviews, water and sewer sign-offs, along with other reviews. Delays should be expected for all reviews. All general questions and meeting requests should be sent to pwd.planreview@phila.gov. Additional information can be found here.

The Water Department is also granting time extensions to expiration dates for project permits and approvals impacted by the shutdown. Time extensions only apply to PWD-issued permits and approvals.

Regular billing will continue, but PWD has waived late payment fees and suspended non-payment terminations for all customers. The termination freeze will remain in place until June 1.

The Stormwater Incentives Team has extended the Stormwater Grant application deadline to July 1. The pre-application meeting deadline has been extended as well. The team encourages individuals to email all questions to PWDStormwaterCredits@phila.gov. The account is being monitored periodically, but delays are expected.

Department of Records

The Philadelphia Department of Records remains closed, but e-recording via third party vendors is still operating. Delays of five to seven business days may be expected.

Department of Planning and Development

The Department of Planning and Development has issued emergency regulations governing “deemed approvals” by the Philadelphia City Planning Commission, the Philadelphia Historical Commission, the Philadelphia Art Commission, and their various committees, including the Civic Design Review Committee and the Sign Committee of the Art Commission. From March 18, through 60 days after the termination of the Mayor’s Emergency Order, the non-performance of review by these agencies, their respective Committees or staff, in connection with any applications, plans, materials or other documents will not constitute a deemed approval or a deemed denial of any such applications, plans, materials or documents subject to review.

Philadelphia Historical Commission

While the offices of the Philadelphia Historical Commission are closed, staff members are still working remotely. General inquiries, approvals, complaints, and nominations can be emailed to preservation@phila.gov. Staff members will review nominations for correctness and completeness and prepare them for processing for when the Commission is back in session. The staff can also review and approve most applications without referral to the Commission itself. Additional information can be found here.

Requests for guidance on proposed construction projects should be emailed to preservation@phila.gov. The e-mail should include: the street address of the property, contact information for the person responsible for the project, the name of the property owner, a description of the proposal, photographs, architectural plans, and copies of any historic documentation.

The Historical Commission is now meeting remotely. The Commission held its first monthly meeting on May 8. The Committee on Historic Designation will meet on May 20. The Architectural Committee will meet on May 26. Members of the public can watch or listen to the Commission’s monthly meetings via WebEx; each monthly meeting will include a public comment period. The public may submit comments either through WebEx or via email at preservation@phila.gov. More information about these meetings can be found here.

Philadelphia Art Commission

Art Commission staff members are working remotely. The Art Commission held its first public meeting since the shutdown on May 6. Details about upcoming meetings can be found here.

Philadelphia City Planning Commission (PCPC)

Staff members at the Planning Commission are working remotely, although, delays should be expected. Staff members are reviewing plans submitted on eCLIPSE and amendments to master plans. PCPC is working with L&I to develop a plan for requests for modifications to previous approvals. PCPC staff will provide comments on any proposed legislation, a draft of which should be sent to staff members; requesting parties should keep in mind that all legislation is subject to the discretion of City Council. Reviews of applications related to steep slopes, frontages, and landscapes are being completed in a timely manner. Reviews of applications related to watersheds or lot lines are delayed due to the inaccessibility of maps located in PCPC’s offices. Staff members are also conducting Urban Design reviews through eCLIPSE. Loading waivers are being processed through e-mail, and staff members are available to provide preliminary Civic Design Review comments by email at CDR@phila.gov.

The Planning Commission held a public, virtual meeting on April 30. Details about upcoming meetings can be found here. PCPC is still evaluating their plans for Civic Design Review Committee meetings because PCPC cannot compel Registered Community Organizations to hold community meetings during the current stay-at-home order. Although, PCPC is surveying RCOs to understand their current capacity.

Courts

On April 1, the Supreme Court of Pennsylvania ordered that, except for certain essential functions, court facilities in all judicial districts in Pennsylvania shall be closed to the public through at least April 30 due to a statewide judicial emergency. The Supreme Court subsequently amended its order on April 28. The new order extends the statewide judicial emergency to June 1, but mandates that beginning May 4, unless otherwise provided by a local emergency order, Pennsylvania courts shall be open to conduct all court business, with certain caveats. Philadelphia county courts, however, are still under a local emergency order, and the First Judicial District will remain closed until May 29. As a result, in Philadelphia, all time calculations and deadlines are suspended through May 29, and PA Rules of Criminal Procedure 600(c), with respect to time calculations, is suspended.

Further, on May 7, Governor Tom Wolf issued an order that all foreclosures requiring compliance with Pennsylvania’s Loan Interest and Protection Law or Pennsylvania’s Homeowners Emergency Assistance Act cannot commence until July 10. Similarly, all eviction proceedings requiring compliance with the Landlord and Tenant Act of 1951 and the Manufactured Home Community Rights Act cannot commence until July 10. Timelines for evictions and foreclosures will be computed with a start date of July 10. More information about the Governor’s order can be found here.

In addition, all Philadelphia Sheriff’s Tax Sales and Mortgage Foreclosure Sales scheduled for May have been postponed to July. More information can be found here.

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This alert is a periodic publication of Ballard Spahr LLP and is intended to notify recipients of new developments in the law. It should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own attorney concerning your situation and specific legal questions you have.